This is a Constitutional petition filed by Anees Ahmad Khan, under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, challenging order dated 7-2-1996, passed by learned District Judge, South Karachi, in Family Appeal No.29 of 1995, by which he allowed the appeal filed by respondent No.1 against order dated 7-11-1995, passed by the learned IXth Family Judge, Karachi South, in Family Suit No.482 of 1993, by which he allowed the application for review filed by the petitioner and ordered for recalling the respondent No.1 and her witnesses for the purpose of cross- examination.
2. The brief facts leading to this petition are that Family Suit No.482 of 1993, was filed by the respondent No.1 for dissolution of marriage on the ground of Khula' against the petitioner, which is pending in that Court for final disposal. Written statement was filed by the petitioner on 21-4-1994 and the issues were framed by the Court on 24-8-1994. The petitioner sought adjournment on various dates, therefore, the evidence of respondent No. l could not be recorded. On 12-9-1994 his adjournment application was granted as last chance and the case was fixed for 15-9-1994 on which date again, adjournment was sought and the same was granted subject to payment of Rs.100 as costs. On 21-9-1995 when the case was fixed for plaintiff's evidence, the petitioner as usual sought adjournment which was granted subject to payment of Rs.200 as costs and the case put off to 26-1-1995 for cross-examination. On this date again petitioner's counsel sought adjournment and the case was put off to 12-2-1995, when the respondent No. l and her witnesses were present, but the petitioner, and his counsel remained absent without any intimation, therefore, cross- examination of the respondent No. l and her witnesses was made as nil and the side was closed.
On 19-2-1995, the petitioner moved an application that he may be allowed to cross-examine the respondent No. l and her witnesses and such application was allowed subject to payment of Rs.1,000 as costs. The case was put off to 9-3-1995 on which date the petitioner's counsel made an application for setting aside the order dated 12-2-1995 but this request was declined, therefore, the petitioner filed Writ Petition No.S-26 of 1995 which was dismissed in limine on 10-1-1996 by this Court. The petitioner had also filed Family Appeal No.7 of 1995, in the Court of learned District Judge, South, Karachi against the order dated 27-3-1995 passed by the Family Judge by which side of the defendant was closed. The petitioner then after losing the case in Family appeal as well as in writ petition filed review application under Order 47, Rule 1, C.P.C., for vacating the order dated 29-3- 1995 and granted permission to petitioner to cross-examine the witnesses of the plaintiff and produce his evidence. Against this order the respondent No. l filed Family Appeal No.29 of 1995 in the Court of District Judge, South Karachi, who after hearing the parties' counsel allowed this appeal, vide his order dated 27-2-1996 and set aside the impugned order and directed the Family Judge to dispose of the suit within one month.
3. Against the above last order passed by the learned District Judge, Karachi South, present writ petition has been filed.
4. Mr. Abdul Wajid Wyne, learned counsel for the petitioner has only raised on point before me that the appeal filed against the order dated 7-11-1995 of Family Judge, before learned District Judge was not maintainable under section 14 of the West Pakistan Family Courts Act, 1964, as it was an interlocutory order which is not appealable. His further contention is that only appeal against a decision or final decree passed by Family Courts can be filed under section 14 of the West Pakistan Family Courts Act, 1964. He has relied upon the cases of Rao Muhammad Owais Qarni v. Mst.
Tawheed Aisha and 2 others, reported in 1991 M LD 1097 and Adrian Afzal v. Col. (Retd.) Sher Afzal and 2 others, reported in PLD 1982 Lah. 755.
5. Mr. Abdul Waheed Katpar, who has appeared on behalf of respondent No. 1 on pre-admission notice has argued that the writ petition is not maintainable as the learned District Judge has passed a legal order and within his jurisdiction. According to him the order of Family Judge was not an interlocutory order but it was a decision as mentioned in section 14 of the West Pakistan Family Courts Act, 1964, as he reviewed the previous order passed by him without any cogent reasons in spite of the fact that the petitioner had lost his case in writ petition as well as his appeal filed against such order before the learned District Judge was dismissed as withdrawn. He has relied upon the case of Babu v. District Judge, Sahiwal and another, reported in PLD 1978 Lah. 85.
6. I have given full consideration to the contentions raised by the learned counsel for the parties and have gone through the material available before me. The order of the Family Judge debarring the petitioner from cross-examining the respondent No. 1 and her witnesses and further closing the side of the petitioner had attained finality when the application for setting aside such order was also dismissed by the Family Judge, therefore, the last order dated 7-11-1995 passed by Family Judge, reviewing his previous order would be termed as a decision as stated in section 14 of the West Pakistan Family Courts Act, 1964, and it could not be termed as simple interlocutory order, therefore, in my humble view the appeal filed against this order before the learned District Judge, was maintainable and the learned District Judge had not committed any illegality while allowing the appeal. It was within his jurisdiction to hear such appeal, I am fortified by the decision reported in PLD 1978 Lah. 85 (Babu v. District Judge, Sahiwal and another). For the abovementioned reasons and discussions I have come to this conclusion that the present petition is not maintainable and it has been filed with the intention to protract the proceedings of family suit in which dissolution of marriage on the ground of Khula' is involved. It would not be out of context to mention that from the very beginning the petitioner has tried to protract this family suit in spite of the fact that he was granted several adjournments but he did not cross-examine the respondent No. l and her witnesses. The suit is pending since 1993 but it appears that the petitioner has tried to block the way of the respondent No. l to get a decision according to law from the Court.
C.P. No.S-23/1996 Accordingly the petition is dismissed in limine.